Public Law & Legal Theory
The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims. These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in time of war. Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land. The scope and content of the Conventions have assumed central importance in debates about U.S. policy toward al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba. Indeed, several aspects of U.S. policy toward the detainees arguably violate the Conventions. In response, the Bush Administration maintains in effect that the Conventions, even if they are applicable and even if U.S. policy is inconsistent with them, are not binding on the President as a matter of domestic law because the President has the constitutional authority to choose to violate the Conventions in the interest of protecting national security. This Article evaluates the Bush Administration’s claim. The Administration’s position has certain non-trivial virtues. Even if the United States has no legal right to violate the treaties as a matter of international law, there are good reasons to recognize an implied power to violate (or supersede) treaties as a matter of domestic law. The central question is who should have this authority: the President or Congress. We consider in detail three variations of the Administration’s position - read in its best light. The President’s power to violate treaties might stem from (1) the President’s law-making authority; (2) the President’s law-breaking authority; or (3) the President’s unfettered discretion to interpret U.S. treaty obligations. Following detailed consideration of each variation, we conclude that the President has no authority to violate a treaty obligation if Congress has the authority under Article I to enact legislation superseding that treaty obligation. Because the rules embodied in the Geneva Conventions address matters within the scope of Congress’ Article I powers, the President lacks the constitutional power (absent congressional authorization) to violate these treaties. Building on this claim, we also argue that the President never has the unilateral authority to violate treaties because the existence of international rules empowers Congress to regulate matters governed by the treaty, even if those matters would otherwise be subject to the President’s exclusive power. Finally, we suggest that there is some meaningful role for courts to play in enforcing treaty obligations—irrespective of whether the President’s interpretation of any given treaty is entitled to substantial deference. In short, we conclude that the President is bound by the Geneva Conventions—as a formal legal matter and as a practical matter.
Derek Jinks & David Sloss, "Is the President Bound by the Geneva Conventions?," University of Chicago Public Law & Legal Theory Working Paper, No. 61 (2004).